Commencing Proceedings at VCAT
Procedures for commencing an application varies from list to list. Each list has its own application form prescribed by the rules all of which are available from VCAT or the VCAT website.
- An application fee is payable on commencement of most applications.
Natural Justice and Consumer Rights at VCAT:
As a general rule representatives are not required to stand up in a Tribunal room. Members are called madam or sir, or senior member or Deputy President, or Mr or Madam Chair, Mr Chairman, Madam Chairman.
The VCAT Act contains a number of provisions which either impose directly on VCAT obligations to accord natural justice or acknowledge the existence of such obligations. These provisions are section 80 (1), 97, 98, 99 and 102.
Two basic rules of natural justice: the fair hearing rule and the bias rule.
- The fair hearing rule requires the adjudicating body to provide to the parties before it a reasonable opportunity to present their cases and to answer any allegations against them.
- The bias rule requires the adjudicating body to be impartial. There are two types of bias that can infringe the bias rule: actual bias and apprehended bias as outlined below:
- Actual bias involves the adjudicating body being unable to decide the matter impartially;
- Apprehended bias involves a perception of a lack of impartiality.
A breach of the rules of natural justice is frequently relied upon in applications for judicial review and in Supreme Court appeals of VCAT decisions on a question of law.
In addition section 24(1) of the Charter of Human Rights 2006 provides that a party to a civil proceeding has the right to have the … proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Rules of Evidence at VCAT:
VCAT Act s. 98(1)(b) means that VCAT is not bound by the rules of evidence. Moreover, VCAT may inform itself on any matter as it sees fit: s. 98(1)(c); and must conduct each proceeding with as little formality and technicality for a proper consideration of the matters before it.
Section 102(1) of the VCAT Act provides that:
- The Tribunal must allow a party a reasonable opportunity
- to call or give evidence; and
- to examine, cross-examine or re-examine witnesses; and
- to make submissions to the Tribunal.
Like everything else at VCAT, the level of formality in hearings varies from list to list and parties should always check the practice note for guidance.
The wide discretion given to the Tribunal means that the Tribunal can consider hearsay evidence, non-original and self serving documents, the submissions of non-parties to the hearing and judicial notice of well known facts; evidence may be given orally or in writing and where required by the Tribunal must be given on oath or by affidavit;
Nevertheless, the Tribunal and subsequent Court decisions have indicated that the rules of evidence should be used as a guide and dispensed with only when there is sound reason. As such, practitioners and the public should always prepare their case as if the rules of evidence applied; and have reason why those rules should be departed from to present to the Tribunal (i.e. documents lost, persons unable to be called etc.).
Procedure and formality is a matter to be determined by the sitting member as he or she sees fit. As a general rule, the more commercial the dispute, the more formal the procedure adopted and the greater impact the rules of evidence have.
Expert Evidence:
The use of expert evidence is regulated by s.94 of the VCAT Act and Practice Note VCAT 2, which is based on the Code of Conduct for Experts in the Supreme Court. Importantly, the Practice Note provides:
- An expert witness has a paramount duty to the Tribunal and not to the party retaining the expert.
- An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert’s expertise.
- An expert witness is not an advocate for a party to a proceeding.
Offers of Compromise:
Sections 112 – 115 of the VCAT Act set out the procedure relating to settlement offers.
This system is similar to the offer of compromise used in the Courts effectively, where VCAT has effectively used the Supreme Court Rules, rule 26.03(7) and (8) and Calderbank offers to provide a process for settlement prior to a final hearing and to deal with costs. Section 112 provides (in part):
- Presumption of order for costs if settlement offer is rejected:
- This section applies if a party to a proceeding (other than a proceeding for review of a decision) gives another party an offer in writing to settle the proceeding; and
- The other party does not accept the offer within the time the offer is open; and
- The offer complies with sections 113 and 114; and
- In the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.
If this section applies and unless the Tribunal orders otherwise, a party who made an offer is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made.
Sections 113 and 114 deal with formal matters; the offers may be with or without prejudice, must specify a period of time for which the offer is open not less than 14 days and must provide a time for the payment of any money.
Offers must not be withdrawn in the specified period without the consent of the Tribunal and can only be accepted by way of signed notice of acceptance.
Because of Section 109 and that there is no presumption of costs it is important to make an offer of compromise as early as you can as you will then receive the benefit of section 112.
Filing and Service:
Notice to the other side is not required and is usually given by VCAT after an application is filed. Except in the Building and Property List where once filing VCAT requires you to file with the other side.
Legal Representation:
For a general rule is there are two different test for whether or not a party can be legally represented but in each instance leave must be sought for legal representation. There is no automatic right unless your client is one of a category of people such as government, corporation, children, etc.
On the Planning and Environment List an application by a party under section 62(1)(c) of the Act the Tribunal will ordinarily permit the party to the represented by any person (whether or not a professional advocate).
Civil cases under $10,000.00 where in the Magistrates Court parties have an automatic right to legal representation may only be represented in small claims at VCAT in very limited circumstances.
VCAT Act Schedule 1 clause 28 BB; VCAT will often refuse an application for leave to appear and given only if the Tribunal is satisfied that no other party will be unfairly disadvantaged if the representation is allowed; and either all parties agree or the Tribunal directs that the representation be allowed.
Cases over $10,000.00 and that VCAT must be satisfied that in the interests of justice that the parties be represented.
As a general rule the more complex the case and the more money it is worth the more likely you will be given leave to represent a party in those proceedings.
The Building and Property List operates, in reality, on the assumption the parties will be legally represented (often because one party is an insurer and entitled to representation pursuant to s. 62(2)(g)), and it is reflected in the general practices of the list.
In practice in the Retail Tenancies List there is a required request for legal representatives to be heard (Section 62) but leave is forthcoming as a matter of course and most proceedings are conducted by legal representatives.
What Remedies can VCAT Order:
VCAT’s has powers to make orders and declare relevant remedies quite similar to those powers of a Court.
Some of the potential remedies available in VCAT are:
- Order payment of money;
- Order compliance with a contract (including work to be done);
- Order the return of goods;
- Order payment of damages (including exemplary damages in some cases);
- Order payment by way of restitution;
- Review or vary a contract;
- Order a party to comply with a contract;
- Cancellation (rescission) of a contract;
- Make a declaration pursuant to s. 124 of the VCAT Act;
- Grant an injunction (permanent or interim, ex parte or not) pursuant to s.123 of the VCAT Act;
- Order a party to do or not to do something (retraining injunction, pursuant to s.123);
- Power to enter or inspect land or order an occupier of land to allow access to a party or third party pursuant to s.129 of the VCAT Act;
- Make any order or decision subject to conditions pursuant to s.130(1)
- Require a party to provide an undertaking to the Tribunal as a condition of further orders pursuant to s. 130(2)(d) of the VCAT Act;
- Retain documents or exhibits pursuant to s.128 of the VCAT Act.
Enforcement:
When a monetary order of the Tribunal has not been complied with, in order to enforce the order as a judgment debt, the holder of the order must make application to the Registrar of the Magistrates Court (or such higher Court if the debt is over $100,000) the following documents:
- A certified copy of the order of the Tribunal; and
- A sworn affidavit stating the applicant is the person to whom payment is to be made under the order; and the amount of money that has not been paid.
- The documents must be filed at a Magistrates Court with a nexus to the parties (i.e. where the applicant lives, the debt was due or the place of business of the judgment debtor).
- Enforcement of non-monetary order requires the following documents be lodged with the Supreme Court:
Appeals:
Appeals from decisions of the Tribunal are generally made pursuant to section 148 of the VCAT Act. Other grounds for challenge of the Tribunal’s determinations or conduct our pursuant to order 56 of the Supreme Court rules and pursuant to an application pursuant to the Administrative Law Act 1978 for relief in the nature to share or quash a VCAT decision.
Section 148 of the VCAT Act provides: (1) a party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the preceding:
- To the Court of Appeal, if the Tribunal as constituted for the purpose of making the order by the President or a vice president whether with or without orders; or
- To the trial division of the Supreme Court in any other case if the Court of Appeal all the trial division, as the case requires, gives leave to appeal.
The right of appeal from the tribunal is based on a question of law. If the tribunal was constituted by the president or a vice president then the appeal will go to the Court of Appeal (Supreme Court), or to the Trial Division of the Supreme Court in any other case, if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.
The application for leave to appeal must be made not later than 28 days after the tribunal’s order and in accordance with the Rules of the Supreme Court.
On appeal, the Supreme Court may affirm, vary or set aside the order of the tribunal, make any order that the tribunal could have made in the proceeding or remit the proceeding to be heard and decided again by the tribunal in accordance with the directions of the court.
Daniel Epstein of Counsel
